The Merits of ESPN, Inc. v. The Ohio State University

Ohio State has fought its share of epic and sometimes exhilarating battles through the years. They’ve won many and lost some too. But the latest opponent is a horse of a different color.

In a writ of mandamus complaint filed with The Supreme Court of Ohio on Monday, ESPN, Inc. (herein "The Leader") alleges The Ohio State University ("The OSU") was in violation of the Ohio Public Records Act ("PRA") by denying requests for information under the law. The Leader alleges The OSU denied requests for information relating to the ongoing NCAA investigation against Ohio State in an unlawful capacity.

The P.R.A. is defined in the Ohio Revised Code (O.R.C.) 149.43. The act requires all state agencies make available all public records that are not otherwise exempt by state or federal law. Among (some) of the exemptions listed in 149.43 are medical records, adoptions, parole and probation, child support, trial prep, confidential law enforcement records of investigation, DNA records, juvenile detention, intellectual property and records on minors.

Some may see this action against The OSU as confirmation of a media bias against the university by ESPN. Others, however, believe this is more likely an attempt for ESPN to create a case law precedent that forces a more narrow interpretation of the Family Education Rights and Privacy Act (FERPA).

FERPA is a federal law enacted in 1974 as Title 20 of the United States Code (U.S.C.) that protects "education records" of a student from dissemination to unqualified third parties. The broad statute has been the basis in which many athletic departments have refused the disclosure of information pertaining to athletes. While the letter of FERPA law qualifies as an exemption under Ohio P.R.A., since Federal law trumps state law, the debate, however, rages as to whether athletics-related information should fall under the guise of education.

This game will be unlike the others. It won’t be fought on a field or in an arena. It will be won in a courtroom with penalties being measured by the number of objections raised by both legal representations.

The referee will not be wearing zebra stripes. Instead he (or she) shall be armed with a gavel and dressed in a black robe. The spectators will be members of the media rather than ticket-holders. It’s unlikely you’ll see a roaring wave of O-H-I-O surrounding the courtroom proceedings.

And broadcasting legend Keith Jackson, who helped shape ABC’s "Wide World of Sports," will not be gracefully describing the action with his trademark nasal, tenor voice. Jackson has long retired and The Leader’s surrogate father, Walt Disney, has turned ABC into a pumpkin. Rather, legal scholars will provide color commentary for this particular affair.

This case may turn out to be rather anticlimactic. If The Leader has its way, the case will be marched onward and upward to the nation’s Supreme Court. But all they need is affirmation, on some level at or above the Ohio Supreme Court that athletics records should not fall under the definition of "education."

As it stands, Title 34 of the Code of Federal Regulations (34 C.F.R. 99.3(A)(1)) defines "education records" as being "directly related to a student" and is "maintained by an educational agency or institution or by a party acting for the agency or institution." The C.F.R. is the administrative application of the U.S. Code.

Using the Black’s Law Dictionary (2^nd Edition) to define "education," we find the following:

"Within the meaning of a statute relative to the powers and duties of guardians, this term comprehends not merely the instruction received at school or college, but the whole course of training, moral, intellectual, and physical. Education may be particularly directed to either the mental, moral, or physical powers and faculties, but in its broadest and best sense it relates to them all."

Black’s Law Dictionary is the legal standard for defining certain terms, as it’s based on case precedent throughout the years. In this sense, we find some merit for an overly-broad interpretation of FERPA.

According to the complaint, citing FERPA laws, The OSU denied The Leader a request for "[a]ll emails, letters and memos to and from (OSU head coach) Jim Tressel, (OSU President) Gordon Gee, (OSU compliance director) Doug Archie, and/or (OSU athletic director) Gene Smith with key word (Ted) Sarniak since March 15, 2007." Sarniak is a Jeannette, PA. businessman who has served as a mentor, of sorts, to now-former OSU quarterback Terrelle Pryor.

Even in the broad interpretation of FERPA, however, there may be issues working against The OSU. There's always a catch, right?

O.R.C. 149.43.B(1) requires the custodian of records to simply redact exempted records from any records that contain non-exempt information. In this sense, an email from Jim Tressel’s public account at the university to Sarniak or to another athletics official about Sarniak could be construed as a non-exempt record, and only the name(s) of student-athletes be redacted within the email.

Another consideration is that Sarniak himself was not authorized to be the recipient of an "education record." For Ohio State to prevent a record from being released under FERPA, it has to be considered an education record. But FERPA prohibits any record being released to outside third-parties unless written consent is given by the parent(s), guardian(s) or student(s) themselves. This means there is a contradiction for any emails directly to Sarniak, as unless he was authorized to discuss a student-athlete in question, The OSU broke the law by communicating with him about said player. It can’t, on one hand, say that FERPA protects disclosure of the information but on the other, disclose the information to a person that was not (presumably) given written authorization to discuss the individual.

In general, the P.R.A. is meant to give any Ohio citizen access to public records for transparency. The law is meant to cover all non-exempt records. Further, an information brief on Public Records Law prepared by the Legislative Service Commission Staff (Vol. 127, Issue 13; October 23, 2008) describes the burden that rests on the custodian of records when determining which information is exempt:

"Even if a document does fall under an exception, the public office has the burden of proving that the record is exempt. The Public Records Law is to be liberally construed, and exceptions to it are to be strictly construed against the records custodian."

This means that in a lawsuit, such as this one, it will be on The OSU to prove that it acted within the law when denying records to The Leader. In other words, in an ironic twist, it’s Ohio State that will have to act like a journalist and do its proper diligence.

While it is easy to sympathize with an institution for withholding information from an over-zealous organization standing on a bully pulpit, it’s important to note that under Ohio law, it cannot arbitrarily withhold information on such a basis.

In addition to the requests denied by The OSU pertaining to FERPA, the complaint alleges several other items were denied without proper legal citation.

For instance; the complaint alleges on April 15, 2011, The Leader requested:

"[a]ll documents and emails, Ietters and memos related to NCAA investigations prepared for and/or forwarded to the NCAA since 1/1/2010 related to an investigation of Jim Tressel."

The OSU cited the ongoing NCAA investigation as reason they would not release this information, which is not a permissible legal citation by statute. The complaint, then, suggests this is a violation of O.R.C. 149.43.B(3) which states: "if a request is ultimately denied, in part or in whole, the public office or the person responsible for the requested public record shall provide the requester with an explanation, including legal authority, setting forth why the request was denied."

Lastly, the complaint alleges that The Leader requested: [a]ny and all emails or documents listing people officially barred from student-athlete pass lists (game tickets) since January 1, 2007" and "[a]ny report, email or other correspondence between the NCAA and Doug Archie or any other Ohio State athletic department official related to any violation (including secondary violation) of NCAA rules involving the football program, since January 1, 2005."

While The Leader claims Ohio State contended the requests were overly broad, an acceptable response if the custodian of records cannot specifically determine which records are being sought, it is also specified by O.R.C. 149.43.B(2) that the custodian make every attempt to help narrow the requester’s search and allow an opportunity to further revise the request, neither of which Ohio State did according to the complaint.

Because the law is on the side of The Leader, and the burden of proof will rest on The OSU to prove it acted within the law in denying these requests, this case is likely to fall at least partially (if not entirely) in ESPN’s favor. Of course, if it’s true that the FERPA interpretation is the motivating basis of the lawsuit, The Leader hopes that the Ohio Supreme Court, a Federal Court or eventually the Supreme Court will rule that matters pertaining to athletics do not qualify as "education records."

Beyond the scope of who’s in the right or wrong, what’s more interesting is what’s hiding behind the curtain.

Did Ohio State deny this information out of spite, inconvenience or a strict adherence to what it believed was the law? Or are there more serious circumstances hiding within the stacks of unread communications between the individuals named in the complaint?

Some theorize there is explosive, potentially damning material that has yet to be uncovered. Others believe the materials have been turned over to the NCAA, but perhaps have not been disclosed to the media which would simply constitute slightly more embarrassing revelations.

Whether or not the NCAA has all communications is unknown. Because of the lack of manpower with an NCAA investigation process, records are typically turned over carte blanche but not necessarily en masse. This means it’s theoretically possible there are communications that implicate a department-wide knowledge of the April emails to Tressel without the NCAA’s knowledge. It’s also possible they do know. For that matter, it’s possible there is no implication, just Ohio State playing hardball with The Leader.

This might not turn out to be a gory display of civil unrest, but it’s duly important. Many (public) institutions will be keeping an eye on this, as this could give free reign on uncovering embarrassing or NCAA-infringing activities within a university by journalists seeking a big exposé.

It actually isn’t the first time ESPN has done this.

Last summer, The Leader filed a similar suit in Austin, Texas alleging the University of Texas violated state law in refusing to turn over documents discussing possible conference realignment. In that case, Texas argued (successfully) that the documents were covered by attorney-client privilege. The two sides kissed and made up just months later, partnering on the new Texas Television Network.

Hook ‘em, Horns. Huh?

With FERPA squarely in ESPN’s sights, however, this may not be a bloody battle as much as a battle of wits. Ohio State is far from the only school hiding behind FERPA. While the other requests are on shaky ground for the university, it’s the FERPA barriers that will ultimately decide the relevance of this case.

Some will categorize this case as "us" vs. "them." Others see this as common law vs. the color of law. But ultimately, while ESPN’s real battle might be against FERPA, it’s doing so vicariously against Ohio State. And to think I scoffed at the ESPN paranoia.

This really is a horse of a different color.